Summary: We will not investigate Miss X’s complaint about the Council’s handling of her son’s education. This is because it is reasonable for Miss X to use her right of appeal.

The complaint

1. The complainant, whom I shall refer to as Miss X, complained about the Council’s decision not to name her preferred school in her son’s (Y) Education, Health and Care Plan (EHC Plan). Miss X says the setting named cannot meet Y’s needs and this has left him without a suitable education. Miss X also complained about delay following a review of Y’s EHC Plan.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We will not start an investigation into Miss X’s complaint.
9. The issue at the heart of this complaint is the school named in Y’s EHC Plan. Parents unhappy with the school named in an EHC Plan have the right to appeal to the SEND Tribunal. We expect people to use this right unless we consider it unreasonable for them to do so. The Tribunal can say what school should be named in an EHC Plan. We have no powers to do this.
10. How the Council decided the content of the EHC Plan is linked to the decision Miss X can appeal. This also applies to the education Y has received. The lack of suitable education is linked directly to Miss X’s view the school named in the EHC Plan is not appropriate.
11. The Tribunal can give Miss X the outcome she wants and decide if a different school should be named in the EHC Plan. I see no reason Miss X should not use the appeal rights available to her and so we will not investigate.
12. In its response to Miss X’s complaint the Council accepted it took too long to issue a decision following an emergency review of the EHC Plan. While I understand Miss X’s frustrations, the injustice from the delay is not enough to warrant an investigation.

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Final decision

13. We will not investigate Miss X’s complaint because it is reasonable for her to appeal to a tribunal.

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Investigator's decision on behalf of the Ombudsman